IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 1, 2014

CORTEZ GRIFFIN v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 04-02746 Carolyn Wade Blackett, Judge

No. W2013-01009-CCA-R3-PC - Filed June 26, 2014

The Petitioner, Cortez Griffin, appeals as of right from the Shelby County Criminal Court’s

denial of post-conviction relief following an evidentiary hearing. In his petition, the

Petitioner attacked his convictions for felony murder, especially aggravated robbery, and

criminally negligent homicide, arguing, among other things, that he received the ineffective

assistance of counsel due to counsel’s failure to file a motion to sever the robbery and murder

offenses or pursue the trial court’s joinder of those offenses on direct appeal. On appeal, he

challenges the denial of relief on the aforementioned bases and whether adequate findings

were made by the post-conviction court. However, following our review of the record, we

conclude that the petition is untimely. Therefore, the appeal is dismissed.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JERRY L. SMITH and

NORMA MCGEE OGLE, JJ., joined.

William B. Kelley, Memphis, Tennessee, for the appellant, Cortez Griffin.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle A. Hixon, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Paul Hagerman, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

In November 2003, Lannie McMillan (“the victim”) was found dead near the front

door of a rooming house. See State v. Cortez Griffin, No. W2007-00665-CCA-R3-CD, 2009

WL 4642604, at *5 (Tenn. Crim. App. Dec. 9, 2009), perm. app. denied, (Tenn. Apr. 15,

2010). The victim died from gunshot wounds to the head. Id. There was “damage to the
rear door [and] broken glass outside the rear door” of the rooming house. Id. The Petitioner

later confessed to his involvement in the victim’s death, including his “admission of

responsibility for the homicide, his use of a nine millimeter gun, and his entry into the

rooming house to obtain approximately eight ounces of marijuana.” Id. According to the

Petitioner’s statement, he and his two cohorts, Marquette Milan and Preston Deener, fled the

rooming house after the shooting, and those cohorts later returned to the rooming house to

get the marijuana, unaccompanied by the Petitioner. Id.

A grand jury indicted the Petitioner on charges of first degree premeditated murder,

felony murder, and especially aggravated robbery. See Griffin, 2009 WL 4642604, at *1.

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A Shelby County jury found the Petitioner guilty of first degree felony murder, criminally

negligent homicide, and especially aggravated robbery. Id. The trial court merged the

offenses of first degree felony murder and criminally negligent homicide and sentenced the

Petitioner to life imprisonment and a concurrent sentence of twenty years for his conviction

of especially aggravated robbery. Id.

The Petitioner appealed his convictions to this court, and we found no merit to the

Petitioner’s issues and affirmed the verdicts. See Griffin, 2009 WL 4642604, at *1. Our

supreme declined to review that decision on April 15, 2010. Id.

The Petitioner, pro se, filed a petition for post-conviction relief on May 20, 2011. The

Petitioner certified therein that he had delivered the petition to the appropriate prison

authorities for mailing on May 1, 2011. In, seemingly, an attempt to address the statute of

limitations and the untimeliness of the petition, an affidavit was attached to the petition,

wherein “Dr. Bruce Mays, Education Supervisor” averred as follows: “I hereby respectfully

submit that during the week of April 4-8 and 18-22, 2011, because of inclement weather the

institution was placed on restricted movement only, therefore, restricting inmates to their

assigned housing units, and during the week of April 11-15, 2011 the institution was placed

on administrative lock-down.” The affidavit was dated four days later, May 5, 2011.

Counsel was appointed, and an amended petition was filed. Therein, it was stated that

the petition “is within the one (1) year state of limitation[.]” Among the Petitioner’s grounds

for relief, the Petitioner argued that trial counsel was ineffective “for failing to file a motion

to have the especially aggravated robbery offense severed from the first degree murder in

perpetration of aggravated burglary and first degree murder offense[.]” A second amended

petition was filed which included the issue that appellate counsel was ineffective “for failing

to raise the issue on appeal the trial court’s erroneous consolidation of the first degree murder

It appears from the testimony at the post-conviction hearing that the murder offenses and robbery offense

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were charged in two separate indictments.

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and first degree murder in perpetration of aggravated burglary offenses with the especially

aggravated robbery offense.” A third amended petition was filed.

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The State filed a response to the petition but did not address the untimeliness of the

petition, stating that an evidentiary hearing was necessary. An evidentiary hearing was held

on November 8, 2012, at which the Petitioner, trial counsel, and Marquette Milan, one of the

Petitioner’s co-defendants, testified. The post-conviction court denied relief by order dated

April 4, 2013, again with no mention of the statute of limitations. This appeal followed.

ANALYSIS

On appeal, the Petitioner argues that trial counsel was ineffective for failing to seek

a severance of the murder offenses from the especially aggravated robbery offense and that

appellate counsel was ineffective for failing to pursue the issue of the joinder of these two

separate indictments on appeal. The Petitioner further argues that the post-conviction court’s

order is insufficient for appellate review. The State disagrees with the Petitioner’s

contentions.

We must address the timeliness of the petition as an initial matter. The State failed

to raise the timeliness of the petition in the post-conviction court, and the post-conviction

court did not address the statute of limitations. On appeal, the State refers to the affidavit of

“Dr. Bruce Mays” outlining the various disturbances at the Petitioner’s institution during

April 2011 and then notes that “the parties did not mention the apparent untimeliness of the

petition on the record.” However, the State does not thereafter request a dismissal of the

appeal.

“No court shall have jurisdiction” to consider a time-barred petition unless it falls

within one of the enumerated statutory exceptions, see Tennessee Code Annotated section

40-30-102(b), or is mandated by due process, see Williams v. State, 44 S.W.3d 464, 468

(Tenn. 2001). “Given the post-conviction statute’slanguage conferring jurisdictional import

to the timely filing of a petition, it is essential that the question of timeliness be resolved

before any adjudication on the merits of the petitioner’s claim may properly occur.” David

Lackey v. State, No. M2004-00558-CCA-R3-PC, 2005 WL 1303124, at *2 (Tenn. Crim.

App. May 31, 2005) (quoting Antonio L. Saulsberry v. State, No. W2002-02538-CCA-R3-

PC, 2004 WL 239767, at *1 (Tenn. Crim. App. Feb.9, 2004)); see also Jonathan Adams v.

State, No. E2012-00297-CCA-R3-PC, 2013 WL 1187654, at *3 (Tenn. Crim. App. Mar. 21,

2013), perm. app. denied, (Tenn. Aug. 14, 2013).

The Petitioner raised additional issues in these petitions, but those are not presented for determination on 2

appeal. 

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Under Tennessee Code Annotated section 40-30-102(a), a post-conviction petition

must be filed “within one (1) year of the date of the final action of the highest state appellate

court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on

which the judgment became final, or consideration of the petition shall be barred.” The

statute provides that the limitations period “shall not be tolled for any reason, including

tolling or saving provision otherwise available at law or equity.” Tenn. Code Ann. § 40-30-

102(a). Failure to file within the limitations period removes the case from the court’s

jurisdiction. Tenn. Code Ann. § 40-30-102(b).

The limitations period has three statutory exceptions for certain claims involving new

constitutional rights, certain claims involving new scientific evidence, and for sentences

enhanced by subsequently overturned convictions. Tenn. Code Ann. § 40-30-102(b). There

is nothing in the record to suggest that any of these exceptions apply to the Petitioner’s case.

In addition to the statutory circumstanceslisted above, oursupreme court has held that

due process may require tolling the statute of limitations based upon the conduct of a

petitioner’s lawyer, for example, in situations where an attorney has abandoned the petitioner

or actively lied or mislead the petitioner regarding his case. Whitehead v. State, 402 S.W.3d

615, 631 (Tenn. 2013). To succeed upon such a claim, a petitioner must show “(1) that he

or she had been pursuing his or her rights diligently, and (2) that some extraordinary

circumstance stood in his or her way and prevented timely filing.” Id.

Here, the Petitioner was required to file his petition for post-conviction relief within

one year of April 15, 2010, the date that the Tennessee Supreme Court denied his application

for permission to appeal, as that was the final action of the highest state appellate court to

which an appeal was taken in the Petitioner’s case. The Petitioner states that he presented

the petition to the appropriate prison authorities for mailing on May 1, 2011. See Tenn. R.

Crim. P. 49(d) (the “prison mailbox rule” provides that papers filed by incarcerated pro se

litigants may be considered filed within the prescribed time if delivered to the appropriate

prison authority for mailing within the time allowed for filing). May 1, 2011, is still fifteen

days after the statute of limitations had expired.

The Petitioner attached to his petition the affidavit of “Dr. Bruce Mays, Education

Supervisor,” wherein Dr. Mays averred that the prison was “on restricted movement only”

or “placed on administrative lock-down” during the calendar weeks of April 4 - 8, April 11-

15, and April 18-22, 2011. It is not apparent from the affidavit who Dr. Mays is or what his

duties are in the Petitioner’s prison. Unexplainably, the affidavit is dated May 5, which is

four days after the Petitioner allegedly delivered his petition for mailing. Moreover, eight

days passed from April 22, 2011, to May 1, 2011, the delivery date for mailing stated in the

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petition. This additional week-long lapse is unexplained by the Petitioner or his appointed

counsel.

Accordingly, based on the record as presented, no facts exist that would require a

tolling of the statute of limitations for due process concerns, and no other exceptions to the

one-year statute of limitations apply. See, e.g., Larry Stephen Brumit v. State, No.

M2003-00488-CCA-R3-PC, 2004 WL 1064131, at *8 (Tenn. Crim. App. May 12, 2004)

(petitioner was not entitled to due process tolling because he was unable to produce evidence

as to the rules of the prison mail system, the identity of the person who accepted the petition

for mailing, or any other factors that would explain the whereabouts of the petition between

December 7, the date petitioner claimed he delivered it, and December 27, when it was

received by the post-conviction court clerk). In summary, we conclude that the petition for

post-conviction relief should be dismissed as time-barred and that we, therefore, have no

jurisdiction to review the merits of the Petitioner’s issues. See Adams, 2013 WL 1187654,

at *6.

CONCLUSION

Based upon the record, we conclude that the petition is barred by the one-year statute

of limitations for filing a petition for post-conviction relief and dismiss the appeal.

________________________________

D. KELLY THOMAS, JR., JUDGE

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